Citation Nr: 1032433
Decision Date: 08/27/10 Archive Date: 09/01/10
DOCKET NO. 06-15 870 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the
Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate for
Veterans Affairs
ATTORNEY FOR THE BOARD
Shabnam Keyvan
INTRODUCTION
The Veteran had active duty service from May 1966 until May 1968,
as well as subsequent service with the Army Reserve National
Guard, including from January 2003 until December 2004.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from an April 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in San
Juan, Puerto Rico.
In June 2009, the Board determined that new and material evidence
had been received to reopen the Veteran's claim of entitlement to
service connection for bilateral hearing loss, denied service
connection for vertigo, and granted service connection for
tinnitus. The Board remanded the claim with respect to the issue
of service connection for bilateral hearing loss for additional
development. Specifically, the Veteran's claim was remanded so
that the RO could schedule the Veteran for a VA examination in
order to determine the nature and etiology of his hearing loss.
The examination was completed in November 2009, and a copy of the
VA examination report has been associated with the Veteran's
claim file. The RO subsequently readjudicated the claim in the
March 2010 rating decision. A review of the claims file
indicates that the Board's remand instructions were complied
with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where
the remand orders of the Board are not complied with, the Board
errs as a matter of law when it fails to ensure compliance].
FINDINGS OF FACT
1. In the March 2010 rating decision, the RO granted service
connection for bilateral hearing loss, rating it as
noncompensably disabling, effective February 1, 2005.
2. The Veteran was notified of this decision in April 2010.
3. The Veteran has not filed, or indicates a desire to file, a
Notice of Disagreement (NOD) with respect to the March 2010
rating decision.
CONCLUSION OF LAW
The Board does not have jurisdiction over the appeal of
entitlement to service connection for bilateral hearing loss,
and, as such, the claim must be dismissed. 38 U.S.C.A. §7105
(West 2002); 38 C.F.R. § 20.200 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As an initial matter, the Board notes that an appeal consists of
a timely filed written Notice of Disagreement to a particular
rating decision, and, after a statement of the case (SOC) has
been filed, a timely substantive appeal. 38 C.F.R. § 20.200
(2009).
The record reflects that an October 1984 final rating decision
denied the Veteran's claim of service connection for bilateral
hearing loss. In February 2005, the Veteran filed a petition
seeking to reopen his claim of service connection for bilateral
hearing loss which was subsequently denied in the April 2005
rating decision based on no new and material evidence having been
submitted. In September 2005, the Veteran filed a notice of
disagreement with respect to the denial of his claim seeking
service connection for bilateral hearing loss, as well as several
other claims.
In the June 2009 Board decision, the Board determined that new
and material evidence had been received to reopen the Veteran's
claim of entitlement to service connection for bilateral hearing
loss and remanded said claim for additional development.
Specifically, the Board requested that the Veteran be scheduled
for a VA audiological examination to determine the nature and
etiology of his hearing loss.
In the November 2009 examination report, the audiologist opined
that it is at least as likely that the Veteran's bilateral
hearing loss was caused or aggravated by his period of active
duty service from January 2003 to December 2004. In the March
2010 rating decision, the RO, taking into consideration the
additional medical evidence, granted the Veteran's claim seeking
service connection for bilateral hearing loss, evaluating it as
noncompensably disabling, effective February 1, 2005.
The Veteran never submitted a notice of disagreement or a
substantive appeal for this specific issue. As such, under 38
C.F.R. § 20.200, the Board does not have jurisdiction to address
a claim of entitlement to service connection for bilateral
hearing loss, since this claim has been granted in full and there
is no longer an issue in controversy.
As there remain no allegations of errors of fact or law for
appellate consideration and the Board does not have jurisdiction
to review the claim, it must be dismissed. 38 U.S.C.A. § 7105
(West 2002).
ORDER
The appeal of entitlement to service connection for bilateral
hearing loss is dismissed.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs